Examples of Why Attorney Representation Can Change the Outcome of Your Disciplinary Case

This blog shall focus on two recent Commonwealth Court cases involving professionals who did not retain counsel and sought to handle their disciplinary cases pro se. Unfortunately, each professional had a fool for a client and lost their case. The moral is make sure you retain competent counsel to help explain the legal consequences of every disciplinary action.

Citizens use medical doctors for surgery, they do not do the surgery themselves. Why would you handle your professional license disciplinary case yourself. Medically you won’t die, but your career and profession sure could.

The first case involves a realtor who in 2006 engaged in a shady real estate transaction. He was eventually caught and in 2011 voluntarily agreed to a revocation of his license. Apparently he agreed to the license revocation with out hiring an attorney. Unfortunately, the former realtor did not understand the legal significance of the revocation. As the harshest penalty for any licensee, the realtor lost all property interest in, and therefore his due process rights regarding, his professional license.

More importantly, the realtor unknowingly agreed to wait five years to petition for reinstatement of his license. Pennsylvania code section 63 P.S. § 455.501(c) allows a respective license board to reinstate a license only after five years and proof of compliance with all then existing license criteria and qualifications.

Without legal representation, the realtor could not know of every legal ramification of the revocation. It’s obvious to me that he did not have an attorney because he sought reinstatement within two years. Upon submitting a letter application for reinstatement, again without counsel, he was denied. He appealed. This time with counsel. The court rejected any claim to a property right in his licenses due to his voluntary surrender and dismissed the appeal because the Real Estate Commission lacked any discretion in allowing for license reinstatement prior to the five year period. Izzi v. Bureau of Professional and occupational Affairs, Real Estate Commission, 2014 Pa. Commw. Lexis 128 ( Feb 27, 2014).

The second case is Bharkhda v. Bureau of Prof’l & Occupational Affairs, 2013 Pa. Commw. Unpub. LEXIS 519, 16-17 (Pa. Commw. Ct. 2013). Here, the professional failed to have certain persons present to testify at her hearing. Rather, she attempted to introduce into evidence letters from five of colleagues regarding her qualifications and current competence. At the hearing before the hearing officer, the Commonwealth prosecutor objected on the basis of hearsay.

Hearsay is an out of court statement of a declarant made to assert in court the truth of the matter in the statement. In this case, the hearsay statement was that the licensee was qualified and competent. The prosecuting attorney would not stipulate to this evidence and objected to this basic factual issue. As such, the professional was required to bring into court her references that were asserting competence and qualification.

On appeal, Commonwealth Court agreed that the letters were inadmissible hearsay and were properly excluded by the Board. The applicant attached to her appeal of the provisional denial by introducing the various signed letters without any affidavits, notarization, and were unauthenticated by persons who were not present to testify. The letters purported to provide information about Applicant’s qualifications and competence.

The court stated “These letters are hearsay. See Rule 801(c) of the Pa.R.E. (“hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). The letters are also not admissible under any exception to the hearsay rule. A reference letter is hearsay regardless of relevance because it is an out of court statement offered for the truth of the matter asserted, and the declarant is not available for cross-examination.”

Although the rules regarding evidence are generally relaxed in administrative proceedings, the Walkern 5 Rule applies to hearsay evidence. Rox Coal Company v. Workers’ Compensation Appeal Board (Snizaski), 570 Pa. 60, 75-76, 807 A.2d 906, 915 (2002). Under the Walker Rule, the following standard regarding hearsay evidence is applied in administrative proceedings: (1) hearsay evidence, properly objected to, is not competent to support a finding of fact; (2) hearsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of fact if it is corroborated by competent evidence in the record, but a finding based solely on hearsay will not stand. Shapiro v. State Board of Accountancy, 856 A.2d 864, 872 (Pa. Cmwlth. 2004), appeal denied, 582 Pa. 712, 872 A.2d 174 (2005).

These two cases reveal the importance of hiring an attorney at all stages of any disciplinary proceeding. Any decision to voluntarily surrender your license must be professional counseled, properly negotiated against, and be a last resort decision. I have been contacted by many people with this type of “offer” on the table. I have successfully renegotiated many license surrenders or revocations. Every professional possesses many attributes, qualifications, and family/life reasons why giving up a license is last option to consider.

Fighting your case and/or delaying as long as possible this ultimate sanction is always in the professional’s best interest. Maintaining employment, paying bills, and being able to afford counsel are all realistic considerations in every decision to fight a case versus “giving it up”. However, before throwing in the towel, call me to discuss all options. Let me help you make the correct long-term legal decision in a rational manner and not based upon a knee jerk, rash response to a very scary licensing board letter.
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